Lollar v. Baker

                IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT

                            _____________________

                                 No. 98-60585
                            _____________________



TINA DAVIS LOLLAR,

                                                       Plaintiff-Appellee,

                                   versus

PAMELA BAKER, Etc.; ET AL.,

                                                                Defendants,

PAMELA BAKER, Individually, and in
her official capacity as Facility
Director of South Mississippi
Regional Center,

                                             Defendant-Appellant.
_________________________________________________________________

      Appeal from the United States District Court for the
                 Southern District of Mississippi
_________________________________________________________________
                         December 6, 1999
Before JOLLY and SMITH, Circuit Judges, and SARAH S. VANCE,*
District Judge.

E. GRADY JOLLY, Circuit Judge:

     These section 1983 claims present questions of qualified

immunity.   The defendant and appellant is Pamela Baker.         She is the

facility director of South Mississippi Regional Center, (“SMRC”),

a state agency. This appeal arises from the district court’s order

lifting   the   stay   of   discovery.      Baker   contends   that   she   is

    *
     District Judge of the Eastern District of Louisiana, sitting
by designation.
protected by qualified immunity from having further to respond to

the section 1983 claims asserted by the plaintiff, Tina Davis

Lollar.    Lollar, an employee of the SMRC, alleges that Baker, her

supervisor, violated her Fourteenth Amendment due process rights by

reassigning her to a different position, and by failing to consider

her for a promotion.           Additionally, Lollar, who has a visual

disability, alleges that Baker further violated her federal rights

under the Rehabilitation Act, and she contends that section 1983

provides her with a remedy for that violation.            With respect to the

Fourteenth Amendment due process claim, we hold that Baker is

shielded   by    qualified    immunity    because   Lollar    has   failed   to

demonstrate that Baker deprived her of a property interest.                  We

further hold that section 1983 does not provide a remedy for

violations      of   the   Rehabilitation   Act,    and   that   Baker   enjoys

immunity from suit based on this claim, as well.                 We therefore

reverse the district court and remand the case for dismissal of all

claims against Baker in her individual capacity.

                                      I

                                      A

     In April 1994, Tina Davis Lollar was hired as the Director of

the Psychology Department at the South Mississippi Regional Center,

a state institution operated by the Mississippi Department of

Health.    From April 26, 1994, until October 1, 1996, Lollar held




                                      2
the job title of Director, Psychology Department.          In February

1996, the position of Bureau Director became available, and the job

was formally posted.    Although Lollar believed she was qualified

for the position, Baker contends that she was not eligible because

the position required a degree that Lollar did not possess.         As a

result, Baker did not further consider Lollar for the position.

     Shortly thereafter, effective October 1, 1996, Lollar was

laterally transferred without loss of salary or benefits, to the

position of Director, Psychological Support, Community Services.

This new position required Lollar to drive from SMRC’s main office

to three outlying offices, a task that, because of her sight

impairment, required someone to drive her to the outlying offices

on dark days and at night.     Lollar alleges that, despite repeated

requests, Baker failed to implement any systematic method for

dealing   with   Lollar’s   need   for   assistance.   Lollar’s   needs,

however, were met on an ad hoc basis each time upon request.

                                     B

     On November 6, 1997, Lollar filed suit in the United States

District Court for the Southern District of Mississippi against

SMRC, the Mississippi State Department of Health, and Dr. Randel

Hendrix and Pamela Baker in their individual capacities.            With

respect to Baker, Lollar’s claims were brought under 42 U.S.C.

§ 1983.   She alleged that Baker violated her Fourteenth Amendment




                                     3
due process rights by arbitrarily reassigning her from the position

of   Director   of   the   Psychology       Department   to   the   position   of

Director of Psychological Support, Community Services. Lollar also

alleged that Baker violated her due process rights by arbitrarily

refusing to     promote    her   to   the    position    of   Bureau   Director.

Additionally, Lollar alleged that Baker’s failure to provide her

with reasonable assistance to accommodate her disability, and

Baker’s decision to reassign Lollar to the position of Director of

Psychological Support, Community Services, deprived her of rights

under the Rehabilitation Act,1 for which section 1983 provides her

with a remedy.2


      1
      The Rehabilitation Act provides in relevant part:
     No otherwise qualified individual with a disability in
     the United States, as defined in section 706(20) of this
     title, shall, solely by reason of her or his disability,
     be excluded from the participation in, be denied the
     benefits of, or be subjected to discrimination under any
     program   or   activity  receiving   Federal   financial
     assistance or under any program or activity conducted by
     Executive agency or by the United States Postal Service.
29 U.S.C. § 794 (West 1999).
      2
      42 U.S.C. § 1983 provides:
     Every person who, under color of any statute, ordinance,
     regulation, custom, or usage, of any State or Territory
     or the District of Columbia, subjects, or causes to be
     subjected, any citizen of the United States or other
     person within the jurisdiction thereof to the deprivation
     of any rights, privileges, or immunities secured by the
     Constitution and laws, shall be liable to the party
     injured in an action at law, suit in equity, or other
     proper proceeding for redress. . . .
42 U.S.C. § 1983 (West 1999).




                                        4
     On January 22, 1998, Baker filed an answer and raised the

defense of qualified immunity with respect to these section 1983

claims.   On January 26, Baker filed a motion to require a specific

reply to her immunity defense, and to hold discovery in abeyance

until such a reply was filed.   On February 24, the magistrate judge

granted the defendant’s motion to require a specific reply as to

qualified immunity, but denied the motion to hold discovery in

abeyance.   Following the magistrate judge’s order, Baker filed an

objection to the decision.   On March 19, the magistrate judge held

a case management conference.      On April 1, the magistrate judge

entered an order requiring Lollar to file her reply to Baker’s

claim of qualified immunity no later than April 10, and giving

Baker until April 22 to file a motion to dismiss or for summary

judgment.   The order also held all discovery in abeyance until

April 22.

     On April 8, Lollar submitted her reply brief to Baker’s

assertion of qualified immunity.       Thereafter, Baker filed a motion

to dismiss or for summary judgment.       On August 21, the magistrate

judge entered an order finding that Baker had stated a claim of a

violation of a clearly established statutory or constitutional

right, and ordered the stay on discovery to be lifted to allow

discovery to “proceed with regard to the issues relating to the




                                   5
defense of qualified immunity.”            Baker filed a timely appeal from

that order.3

                                        II

                                           A

     The question presented in this appeal is, as we have noted,

whether Baker is entitled to qualified immunity from these section

1983 claims. To reach this ultimate determination, we must address

two underlying questions:            (1) Whether, under Mississippi law,

Lollar    has   a   clearly       established      property      interest    in   the

noneconomic aspects of her job; and (2) Whether section 1983

provides Lollar      with     a   remedy       against   Baker   for   her   alleged

violations of the Rehabilitation Act.

                                           B

     To show a due process violation in the public employment

context, the plaintiff must first show that she had a legally

recognized property interest at stake.                   See State of Texas v.

Walker, 142 F.3d 813, 818 (5th Cir. 1998); Spuler v. Pickar, 958

      3
      We have appellate jurisdiction to review this order. See
Wicks v. Mississippi State Employment Service, 41 F.3d 991 (5th
Cir. 1995).    In Wicks, we examined whether the grant of a
plaintiff’s discovery request in such a circumstance constitutes a
denial of the defendant’s claim of qualified immunity from which
the defendant is entitled to an immediate appeal.         Id.   We
answered, yes. We held that the grant of a discovery order with
respect to a defendant’s claim to qualified immunity “denies [the
defendant] the benefits of the qualified immunity defense, thereby
vesting this court with the requisite jurisdiction to review the
discovery order.” Id. at 994.




                                           6
F.2d 103, 107 (5th Cir. 1992)(stating that a prerequisite to a

substantive      due    process      claim      is   the    establishment         of     a

constitutionally protected property right). Such a showing, as the

court noted in Schaper v. City of Huntsville, 813 F.2d 709 (5th

Cir.   1987),    must    be   made   by       reference    to    state     law.       “The

Constitution does not create property interests; `they are created

and    their     dimensions       are     defined     by        existing     rules      or

understandings that stem from an independent source such as state

law.’”     Schaper, 813 F.2d at 713(quoting Board of Regents v. Roth,

408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)); see

also Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48

L.Ed.2d 684 (1976)(stating “a property interest in employment can,

of course, be created by ordinance or by an implied contract . . .

in    either    case,    however,       the    sufficiency        of   the     claim    of

entitlement must be decided by reference to state law”).

                                           C

       Lollar contends that under Mississippi law, she had a property

interest in      her    specific     supervisory      job       from   which    she    was

reassigned.     She points us to Bishop v. Wood, 426 U.S. 341 (1976),

and Miller v. City of Nederland, 977 F.Supp. 432, 436 (E.D. Tex.

1997),4 and § 25-9-127(1)5 of the Mississippi Code of 1972 in

       4
      Lollar argues that the Supreme Court ruling in Bishop, and
the Eastern District of Texas holding in Miller support her claim
of a property interest in the duties and responsibilities of her




                                           7
support of her contention.        See also, Mississippi State Employee

Handbook (effective date 9/96), § 3.0, p. 8 (recognizing a property

interest in each state service employee’s job).              For the reasons

noted below, neither Bishop nor Miller is relevant.             On the other

hand,    Mississippi   Code   §   25-9-127   does   create    some   property

interest in jobs that fall within the ambit of that statute.

Specifically, the statute guarantees that there will be no loss in

“compensation or employment status” except for “inefficiency or

other good cause.”     Miss. Code Ann. § 25-9-127 (1999).

     Although it is clear that under Mississippi law a property

interest may be created in a particular job, that property interest



job. Bishop, however, merely directs the court to look to state
law to determine whether a property interest has been created.
Bishop, 426 U.S. at 344.       Additionally, Miller--which is in
conflict with our decision in Kelleher v. Flawn, 761 F.2d 1079 (5th
Cir. 1985)(stating that we expressly rejected a public employee’s
claim of entitlement to the specific duties that she had prior to
reassignment under Texas law)--is not controlling of whether
Mississippi recognizes a property interest in the noneconomic
aspects of a job.
     5
      Mississippi Code § 25-9-127 states in relevant part:
     No employee of any department, agency or institution who
     is included under this chapter or hereafter included
     under it authority, and who is subject to the rules and
     regulations prescribed by the state personnel system may
     be dismissed or otherwise adversely affected as to
     compensation or employment status except of inefficiency
     or other good cause, and after written notice and hearing
     within the department, agency or institution as shall be
     specified in the rules and regulations of the State
     Personnel Board complying with due process of law. . . .
Miss. Code Ann. § 25-9-127 (1999).




                                      8
is generally limited to the financial remuneration of that job.

See Robinson v. Boyer, 825 F.2d 64, 67 (5th Cir. 1987).                       No

property     interest        lies    in       the    particular   duties     and

responsibilities of a job.          See Mississippi Forestry Commission v.

Piazza, 513 So.2d 1242 (Miss. 1987); Davis v. Mann, 882 F.2d 967,

973 (5th Cir. 1989)(holding that pursuant to Mississippi law, the

plaintiff, a state university resident dentist does not have a

property    interest    in    the   duties     and   responsibilities   of   his

employment); Robinson, 825 F.2d at 67 (stating that pursuant to

Mississippi law, “once it has been established that an employee [in

this case a state university security officer] has been fully

compensated [monetarily] for his employment, he is left with no

claim for damages under § 1983 for violation of his property

rights”).

     In Piazza, an employee of the Mississippi Forestry Commission

filed suit in chancery court to enjoin his transfer to another

district.     The Mississippi Supreme Court, reviewing state law,

including Miss. Code § 25-9-127, held:

     It would be a monstrous disservice to the taxpayers of
     this state for any court to hold that when a state agency
     has determined it is to the best interest of that agency
     to transfer an employee, it still must get the employee’s
     consent. . . . A statewide agency with employees
     scattered in every part of the state, and obligations
     imposed by law manifestly must be vested with the
     authority to designate where its employees work.




                                          9
Id. at 1249-50.     Thus, the court concluded that the plaintiff had

no right to a hearing regarding the transfer, or regarding any loss

of noneconomic benefits of his prior job.            Id. at 1250.

       Lollar does not complain that her reassignment from the

position     of   Director,    Psychology        Department,    to     Director,

Psychological Support, Community Services, caused a loss in any

economic benefit.     Neither does she allege an employment contract

that   guaranteed    her    assignment      to   specific   job      duties   and

responsibilities. In short, she has failed to show the deprivation

of a property interest under Mississippi law. Thus, because Lollar

has failed to show that Baker’s decision to reassign her resulted

in a deprivation of any constitutionally protected right, Baker is

entitled to qualified immunity from suit based on this section 1983

claim.

       As we have earlier noted, Lollar also alleges that Baker

violated her Fourteenth Amendment due process rights by failing to

consider her for the position of Bureau Director.              It is difficult

to understand the basis for this due process claim.               To the extent

that we are able to discern from Lollar’s complaint and appellate

brief her particular claim, she must be asserting that she had a

recognized    property     interest,    under     Mississippi     law,   in   the

position of Bureau Director.       We further take her complaint to be

that the failure of Baker to consider her for that position




                                       10
resulted in a denial of a promotion to the position.              In any event,

Lollar has failed to show how she has any sort of a property

interest in a job she has never held.            Baker is therefore entitled

to immunity from suit based on this section 1983 claim.

      Thus, the order of the district court granting Lollar’s motion

to lift the stay of discovery as to these due process claims is

reversed, and these claims must be dismissed.

                                       III

      The next question we address is whether section 1983 provides

Lollar with a remedy against Baker for her actions that Lollar

alleges violated the Rehabilitation Act.                The Rehabilitation Act

prohibits    recipients       of    federal      financial    assistance    from

discriminating     against         disabled,      but    otherwise    qualified

individuals.    See Kapche v. City of San Antonio, 176 F.3d 840, 844

n.27 (5th Cir. 1999).     To enforce its provision, the Act provides

for   suit   against   “any    program      or   activity    receiving   Federal

financial assistance.”        29 U.S.C. § 794 (West 1999).           Here it is

clear that SMRC--not Baker--is the program recipient of the federal

financial assistance.          Consequently, Lollar cannot sue Baker,

individually, under the Act.4         See, e.g., Clanton v. Orleans Parish

      4
     Lollar argues that independently of her section 1983 claims,
section 794 of the Rehabilitation Act provides her with a cause of
action against Baker in her individual capacity. Lollar cites to
our holdings in Brennan v. Stewart, 834 F.2d 1248 (5th Cir. 1988)
and McGregor v. Louisiana State Univ. Bd. of Supervisors, 3 F.3d




                                       11
Sch. Bd., 649 F.2d 1084 (5th Cir. 1981)(holding that a supervisor

who implemented a maternity leave policy that violated the terms of

title VII could not be held individually liability under the Act);

Grant v. Lone Star Co., 21 F.3d 649, (5th Cir. 1994)(holding

“[o]nly ‘employers,’ not individuals acting in their individual

capacity who do not otherwise meet the definition of ‘employers,’

can be liable under title VII”).      Lollar, however, seeks to use

section 1983 as a vehicle to reach Baker individually, as a person,

who under color of law, has subjected Lollar to the deprivation of

rights under the Rehabilitation Act.         See supra note 2.           Our

circuit has not had occasion to resolve whether a state employee

who alleges a violation of the Rehabilitation Act may bring an

action under section 1983 against an individual state actor in lieu

of, or in addition to, an action against the employing agency under

the   Rehabilitation   Act.   Thus,   this   is   a   question    of   first

impression in our circuit.

      As a general rule of statutory construction, a statute that

affords a remedy for specific wrongs, and which is comprehensive

enough to embrace subjects that may fall within the ambit of a

general statute, should prevail over the general statute as a

vehicle for enforcing those specific statutory rights.           See, e.g.,


850 (5th Cir. 1993) to support this contention. Neither Brennan,
nor McGregor, however, decided whether section 794 provided a cause
of action against the defendants in their individual capacities.




                                 12
Resolution Trust Corp. v. Miramon, 22 F.3d 1357, 1362 n.7 (5th Cir.

1994)(citations omitted); Chemetron Corp. v. Business Funds, Inc.,

682 F.2d 1149, 1364 n.51 (5th Cir. 1982), judgment vacated, 460

U.S. 1007, 103 S.Ct. 1245, 75 L.Ed.2d 476 (1983)(quoting Montague

v. Electronic Corp. of America, 76 F.Supp. 933, 936 (S.D.N.Y.

1948).   Furthermore, a comprehensive remedial scheme for the

enforcement   of   a   statutory   right    creates   a   presumption   that

Congress intended to foreclose resort to more general remedial

schemes to vindicate that right.           See Middlesex County Sewerage

Auth. v. National Sea Clammers Ass’n., 453 U.S. 1, 20, 101 S.Ct.

2615, 2626, 69 L.Ed.2d 435 (1981).5        Within the Rehabilitation Act,

Congress has provided a specific comprehensive internal enforcement

     5
      In Middlesex, the Supreme Court addressed whether Congress,
in providing comprehensive remedial schemes in two federal
statutes, intended to “preserve the § 1983 right of action” to
enforce those rights. Middlesex, 453 U.S. at 20. The Court held:
“When the remedial devices provided in a particular Act are
sufficiently comprehensive, they may suffice to demonstrate
congressional intent to preclude the remedy of suit under § 1983.”
Id. at 19-20.    The Court supported this conclusion by citing
Justice Stewart’s dissenting opinion in Chapman v. Houston Welfare
Rights Org., 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979)
stating: “[W]hen ‘a state official is alleged to have violated a
federal statute which provides its own comprehensive enforcement
scheme, the requirements of that enforcement procedure may not be
bypassed by bringing suit directly under § 1983.’” Middlesex, 453
U.S. at 20 (quoting Chapman, 441 U.S. at 673 n.2). Thus, the Court
concluded “that the existence of these express remedies
demonstrates not only that Congress intended to foreclose implied
private actions but also that it intended to supplant any remedy
that otherwise would be available under § 1983.”      Id. at 20-21
(citing Carlson v. Green, 446 U.S. 14, 23, 100 S.Ct. 1468, 1474, 64
L.Ed.2d 15 (1980)).




                                    13
mechanism to protect the rights of the disabled who are employed by

recipients of federal funds.          See 29 U.S.C. § 794(a) (West 1999).6

Thus, we will assume that Congress intended to foreclose resort to

the    more      general   enforcement    provisions   of    section   1983   to

vindicate the rights created by the Rehabilitation Act.                See also

Veal       v.   Memorial   Hosp.,   894   F.Supp.   448,    452-455   (M.D.   Ga.

1995)(discussing this general rule of statutory construction in the

context of an attempt to vindicate the statutory rights created by

Rehabilitation Act by resorting to section 1983).

       In rejecting section 1983 as an enforcement mechanism for

rights found in the Rehabilitation Act, we join the Eleventh

Circuit.        In Holbrook v. City of Alpharetta, 112 F.3d 1522 (11th

Cir. 1997), the Eleventh Circuit reasoned that

       both the Rehabilitation Act and the ADA provide
       extensive, comprehensive remedial frameworks that address

       6
      Title 29 section 794(a) of the United States Code provides:
     The remedies, procedures, and rights set forth in section
     717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16),
     including the application of section 706(f) through
     706(k) (42 U.S.C. 2000e-5(f)-(k)), shall be available,
     with respect to any complaint under section 791 of this
     title, to any employee or applicant for employment
     aggrieved by the final disposition of such complaint, or
     by the failure to take final action on such complaint.
     In fashioning an equitable or affirmative action remedy
     under such section, a court may take into account the
     reasonableness of the cost of any necessary work place
     accommodation, and the availability of alternatives
     therefore or other appropriate relief order to achieve an
     equitable and appropriate remedy.
29 U.S.C. § 794(a)(West 1999).




                                          14
      every aspect of [a plaintiff’s claim] under section 1983.
      To permit a plaintiff to sue both under the substantive
      statutes that set forth detailed administrative avenue of
      redress as well as section 1983 would be duplicative at
      best; in effect such a holding would provide the
      plaintiff with two bites at precisely the same apple. We
      conclude that a plaintiff may not maintain a section 1983
      action in lieu of--or in addition to--a Rehabilitation
      Act or ADA cause of action if the only alleged
      deprivation is of the employee’s rights created by the
      Rehabilitation Act and the ADA.

Holbrook, 112 F.3d at 1531; see also, Alsbrook v. City of Maumelle,

184   F.3d    999,   1010-11    (8th    Cir.    1999)(stating    “the   ADA’s

comprehensive remedial scheme bars [the plaintiff’s] section 1983

claims against the commissioners in their individual capacities”).

      In sum, because the Rehabilitation Act by its express terms

provides     comprehensive     enforcement     and   remedial   measures   for

violations of its provisions, we hold that section 1983 cannot be

used as an alternative method for the enforcement of those rights.

Consequently, Baker is entitled to qualified immunity from suit

under section 1983 for this claim.

                                       IV

      To conclude, we hold that under Mississippi law, Lollar does

not have a legally recognizable property interest in either the

non-economic duties and responsibilities of her job, or in a job

she had never held.          Lollar has therefore failed to overcome

Baker’s assertion of qualified immunity with respect to her due

process claims based on her reassignment and failure to promote




                                       15
claims.    Further, we hold that section 1983 does not provide a

remedy    for   alleged   violations   of   the    Rehabilitation   Act.

Consequently Baker has immunity from suit on this claim.       Thus, the

order of the district court allowing discovery is REVERSED and the

case is REMANDED for an entry of judgment of dismissal of all

claims against Baker in her individual capacity, and for such

further proceedings with respect to the other parties as may be

appropriate.

                                                  REVERSED and REMANDED.




                                  16